The Law Society of Newfoundland v. Labrador, 2020 NLSC 141

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Law Society of Newfoundland and Labrador v. Wentzell , 2020 NLSC 141 Date : November 17, 2020 Docket : 201801G7838 Between: The Law Society of Newfoundland and Labrador APPELLANT / respondent by cross-appeal And: Brian Wentzell RESPONDENT / cross-appellant Before: Justice Daniel M. Boone On Appeal From: A Decision of the Adjudication Panel dated the 10th day of October, 2018, pursuant to

Section 55.2 of the Law Society Act, 1999 . Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 21, 2020

Summary: The Law Society appealed a decision of an Adjudication Tribunal dismissing complaints that a lawyer had breached the Code of Professional Conduct by settling a claim without instructions and filing a false affidavit. The lawyer sought to cross-appeal a finding that he had breached his duty of integrity to his clients by filing an affidavit in support of an adverse party’s application to enforce settlement.

The Court dismissed the Law Society’s appeal. There was no palpable and overriding error in the tribunal’s determination oncredibility. The Court allowed the lawyer an extension of time to file the cross-appeal but dismissed the cross-appeal because theTribunal had not erred in law in finding the lawyer had breached the duty of integrity by filing an affidavit against his clients’ interestsand without their consent. Appearances: Andrew A. Fitzgerald Appearing on behalf of the Appellant Brian D. Wentzell Appearing on his own behalf Authorities Cited: CASES CONSIDERED: Browne v.

Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H.L.); Regular v. Law Society ofNewfoundland and Labrador, 2011 NLCA 54; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Palmer v. R., (SCC), [1980] 1 S.C.R. 759; R. v. McNeill (2000), (ON CA), 48 O.R. (3d) 212, 33 C.R. (5th) 390(C.A.); R. v. Dexter, 2013 ONCA 744; R. v. Quanshah, 2015 ONCA 237; Conception Bay South (Town) v. Newfoundland (PublicUtilities Board) (1991), (NL CA), 287 A.P.R. 167, 92 Nfld. & P.E.I.R. 167 (Nfld. C.A.); Eastern Regional IntegratedHealth Authority v.

Assn. of Registered Nurses of Newfoundland and Labrador, 2016 NLTD(G) 182; Institute of Chartered Accountantsof Newfoundland and Labrador v. Cole, 2017 NLTD(G) 73; Lundrigan Group Ltd. v. Pilgrim (1989), (NL CA), 234A.P.R. 217, 75 Nfld. & P.E.I.R. 217 (Nfld. C.A.); L.S. v. M.M., 2018 NLSC 69; Law Society (Newfoundland) v. Fahey, 2000 NFCA 19;Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235 STATUTES CONSIDERED: Law Society Act, 1999, S.N.L. 1999, c. L-9.1 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This matter comes to the Court as a statutory appeal from a decision of a Law Society Adjudication Tribunal. [2] Brian Wentzell represented two corporations in a negligence action against a municipality. The Law Society made threecomplaints regarding his conduct: (

i) that he had settled the action without specific instructions to do so; (ii) that he had filed an affidavitin support of an application to enforce settlement without the consent of his clients; and (iii) that he had included false or misleadinginformation in that affidavit. [3] The majority decision of the Adjudication Tribunal dismissed the complaints alleging that Wentzell had settled the actionwithout instruction and filed a false or misleading affidavit.

The majority determined that the other complaint had been establishedbecause Wentzell filed an affidavit against his clients’ interest and without their instructions and this conduct violated the Law Society ofNewfoundland and Labrador Code of Professional Conduct (the “Code of Conduct”). The third member of the panel dissented. Hefound that Wentzell did settle the action without instruction. [4] The Law Society appeals the decision to dismiss the complaint that Wentzell settled without instructions, but does not appealthe decision on the complaint related to the alleged false affidavit.

Wentzell asserts a cross-appeal from the finding that he breached theCode by filing an affidavit in support of an application that was opposed by his clients. The Law Society takes the position that thecross-appeal is not properly before the Court because it was filed too late. [5] The Law Society appeal is grounded in the position that the dismissal of the first count of the complaint resulted from aflawed determination of Wentzell’s credibility that was, at least in part, based on misapplication of the rule in Browne v. Dunn (1893),1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H.L.).

In the cross-appeal, Wentzell argues that the Adjudication Tribunal erred in finding thathe violated the Code by filing an affidavit in support of an application to enforce the settlement of his clients’ case.

[ 6 ] I have decided that the Law Society appeal ought to be dismissed; that the time for filing the cross-appeal ought to be extended; but that the cross-appeal ought to be dismissed. BACKGROUND [ 7 ] HL Holdings GFW Inc. and Holiday Lanes were the owner and operator of a bowling alley in the Town of Grand Falls- Windsor. Robert Osborne and Petria Rossiter were the shareholders, officers, and directors of these companies. I will refer to the corporations as the bowling alley owners. [ 8 ] A series of floods caused damage and resulting losses to the bowling alley. Some of the losses were covered by insurance.

The bowling alley owners blamed the flooding on the Town. They retained William Collins, Q.C. to bring an action in negligence against the Town seeking to recover the uninsured losses. Wentzell was an associate in Collins’ firm at the time but eventually became a partner and then the sole proprietor of the firm. Collins transferred responsibility for the file to Wentzell around the time that the action was started in 2008.

Rossiter was Wentzell’s principal contact with the bowling alley owners, although Wentzell occasionally communicated with Osborne as well. [ 9 ] The bowling alley insurers commenced a subrogated action against the Town claiming the covered losses. The insurer was represented throughout by Deborah Hutchings, Q.C. The bowling alley owners and their insurer cooperated in prosecuting their respective actions against the Town, but the actions were not joined.

The Town’s insurers denied that the Town was liable, and they retained Denis Fleming to defend both actions. [ 10 ] The Town’s insurers offered to settle both actions for an aggregate of $80,000. This offer was modified when Fleming told Wentzell and Hutchings that the amount would be reduced by legal fees and expenses incurred by his clients in his preparation for and conduct of discoveries in both actions, which were set to take place from December 20 to 22, 2010.

On December 20, before the discoveries started, Wentzell made an offer on behalf of his clients to accept the amount of $40,000 in full and final settlement of the uninsured claim. Discoveries were cancelled, and on December 22 Fleming told Wentzell that he had been instructed to accept that offer and had requested funds. [ 11 ] In January 2011, Wentzell received a draft form of release from Fleming and he forwarded it on to his clients. However, the bowling alley owners refused to sign the release and maintained that they had never instructed Wentzell to make the offer to settle for $40,000.

The Town’s insurers brought an application to enforce the settlement, and the bowling alley owners retained other lawyers to oppose that application. Wentzell was asked by Fleming to provide an affidavit attesting that he had been instructed to make the offer. He agreed to provide that affidavit and it was filed in support of the application. The application was allowed by Schwartz, J. who ordered the bowling alley owners to provide a release in return for the $40,000. [ 12 ] The bowling alley owners then sued Wentzell for negligence and breach of fiduciary duty for making an offer without their instruction.

The Law Society insurance program appointed a lawyer to represent Wentzell in that action. Wentzell, on the advice of that lawyer, admitted liability (Wentzell says that this admission was based on advice that he would be found liable because he had received instructions only from Rossiter and not from Osborne).

There was a trial on damages, calculated by the difference between the $40,000 received from the Town’s insurers and the damages that would have been awarded if the bowling alley owners’ claim had proceeded to trial instead of being settled by Wentzell. [ 13 ] The President of the Law Society laid a complaint about Wentzell’s conduct. Rossiter was the main witness presented in the prosecution of the complaint. Osborne and two lawyers who had been later retained by the bowling alley owners also testified.

Wentzell relied on his own testimony in defence of the complaint. [ 14 ] The main factual point of contention at the hearing was whether Wentzell had been instructed to settle the action for $40,000. That factual issue had already been engaged in other proceedings. In the application to enforce the settlement, Wentzell filed an affidavit that said that he had received instructions by telephone from Rossiter on the morning of December 20, 2010.

He repeated that assertion in an affidavit filed in support of an interlocutory application within the claim against him for damages, and in that later affidavit he also noted that on the same day he had memorialized that conversation in a handwritten note to file. [ 15 ] In his testimony before the Adjudication Tribunal, however, Wentzell told a different story. He said that he received instructions to settle from Rossiter and Osborne during a phone call on December 19, 2010 and that Rossiter confirmed these instructions in a brief telephone conversation on the morning of December 20.

Wentzell did not have a present recollection of that phone call at the time of his testimony. Rather, he said he realized it must have occurred only in preparation for his own testimony, when he reviewed an email from Rossiter dated December 19, which asked that Wentzell “give us a call.” He found a printed version of this email at the bottom of his file, which had been in the possession of the lawyer defending the claim for damages for some time.

Although the email had been sent by Rossiter, she had not disclosed it to the Law Society, notwithstanding an admonition from the Adjudication Tribunal that she disclose every relevant document in her possession. [ 16 ] Both Rossiter and Osborne denied that they ever instructed Wentzell to offer to settle for $40,000. Rossiter testified that the only phone call she had with Wentzell on December 20 was one in which she communicated a request that Wentzell’s office provide a copy of a title search to the lawyers then acting on a sale of the bowling alley.

Wentzell had cross-examined Rossiter and Osborne before he testified, but he did not put to either that there had been a phone call on December 19 during which instructions to settle were provided. [ 17 ] The majority decision considered the motivations that could explain the position taken by each of the parties. It was not suggested at the hearing that Wentzell had his own reason for advancing a settlement offer. But, the majority did consider that it was possible that he had made a mistake in advancing an unconditional offer, rather than one conditional on the subrogated insurers accepting a similar offer.

They discounted this because they noted that if Wentzell had made a mistake, then he could have corrected it by revoking the offer before the Town’s insurers accepted it. As for the bowling alley owners, they were considerably concerned about the cost of litigation and they therefore were very concerned that their insurers participate in the action to help defray costs. On the other hand, they also did not want to settle for less than their insurers would obtain. After Wentzell had advanced the settlement offer to

Fleming, Rossiter and Osborne learned that their insurers were going to attempt to negotiate for an amount higher than $40,000. They told Wentzell to follow up with Hutchings, and Rossiter did so herself as well. In January 2011, Rossiter and Osborne appeared to believe that they could also continue to negotiate. The majority found that Wentzell did not make sufficient effort to explain that they could not continue to negotiate because their claim was settled. [ 18 ] Sixty-eight exhibits were admitted into evidence by consent at the hearing.

Most of those documents were printed copies of emails between Wentzell and his clients, Wentzell and Fleming, and Rossiter and Hutchings, Q.C. These emails documented communications during the period from November 2010 to January 2011. The majority decision analyzed the documents filed, and considered the evidence of the witnesses, with a view to comparing each to the position taken by the Law Society and Wentzell. This portion of the majority decision spanned 25 pages.

The majority concluded on the first count of the complaint: We are not able to conclude, on a balance of probabilities, that Brian Wentzell improperly settled the matter or that he did so without specific instructions or authorization. The determination of the matter was largely a determination of credibility between Petria Rossiter and Brian Wentzell.

There was contradictory evidence in both directions, but upon an assessment of the whole of the evidence it does not allow us to conclude that Brian Wentzell was untruthful or that he did not hold the honest belief that he had authorization and instructions to settle, or that he did not receive authorization and instructions to settle, or that Petria Rossiter was not properly informed as to the consequences of settling.

While it could have been plead and argued that Brian Wentzell could have been more careful in recording receipt of instructions, and certainly should have been more careful in communicating settlement, those are not the complaints. Given the short time frame with discoveries to begin later that day, the looming threat of a discount in settlement funds available if they did begin, and the possibility of an application for security for costs in the event that the business sale closed that day, Brian Wentzell relied on a telephone conversation from his client to receive instructions.

Whether that was reasonable or not, that is not the complaint. Based upon the whole of the evidence, we find that it is most likely that Petria Rossiter and Brian Wentzell had a conversation on or about 9 a.m. on December 20, 2010, that they discussed the challenges of continuing and that she told him to see if Denis Fleming would “accept” $40,000, and to settle if he would. We find that Petria Rossiter knew of the consequences of settlement and that she knew that her instructions would amount to a final settlement.

We find that she was told in the days after that Deborah Hutchings was likely going to settle, and that she learned in January that was not the case. We reject that he told her in conversation that Deborah Hutchings had settled in order to pressure Petria Rossiter to settle. Brian Wentzell’s testimony was largely consistent with the documentary evidence and with that of the other witnesses on the matter of the receipt of instructions. Petria Rossiter’s testimony was inconsistent with it.

On the one hand, she testified that there were no discussions surrounding settlement, and yet the emails demonstrate that she did ask Brian Wentzell to enquire about “acceptance” of $40,000.00; to see if it was still on the table. Later she said that he pressured her to settle that morning with a claim that Deborah Hutchings had settled, which, if it occurred, is also consistent with there having been a conversation surrounding settlement.

This leads us to accept the note in his file of that day, which is consistent with the notes in Denis Fleming’s notes to file. [ 19 ] The majority therefore found that Rossiter had instructed Wentzell to settle during a telephone conversation on December 20. In so doing, they rejected the evidence of Wentzell that the instructions to settle had been communicated by Rossiter and Osborne on December 19, and confirmed on December 20. They set out this conclusion under the heading “ Rule in Browne and Dunn. ” The rule is a rule of fairness which applies to the credibility of a witness.

If counsel intends to impeach the credibility of a witness through later evidence, the witness must be confronted with the anticipated evidence in order to allow him or her to explain it. Counsel for the Law Society took issue with Brian Wentzell’s failure to put-to Petria Rossiter and other witnesses his intended or anticipated contradictory testimony. This is a legitimate evidentiary issue, and failure on the part of Brian Wentzell to do so does eliminate the opportunity for the tribunal to see how the witnesses perform when confronted with such assertions.

It would have been preferred in some instances, and in the case of Brian Wentzell’s on December 19, 2020 with both Robert Osborne and Petria Rossiter, it most certainly should have been undertaken. His new-found December 19th recollection in that regard was an epiphany by him during his direct evidence, and so he would not have been able to confront the previous witnesses with it.

Brian Wentzell argued that he could not have done so as he only recalled the conversation during his testimony, and did not receive that email which spurred his recollection in the list of documents provided in the civil trial when he was sued. His affidavit and other evidence tendered do not support this conclusion, and so we reject that the call occurred as stated. At the same time, given the type of hearing that this is, and the self- representation by Brian Wentzell, we do not deem it fatal to our ability to consider the testimony.

Lack of adherence to the rule does, however diminish parts of the testimony and its weight to a varying extent. [ 20 ] The majority dismissed the two complaints that depended on the resolution of the factual issue as to whether Wentzell had received instructions from Rossiter to settle: the complaint that he had settled without proper instruction, and the complaint that he had lied in the Affidavit he filed in support of the Town’s application to enforce the settlement in which he asserted that Rossiter had instructed him to settle during a conversation on December 20. [ 21 ] The majority found that the complaint relating to Wentzell’s Affidavit in support of the application to enforce settlement was established.

This finding did not depend on resolution of a factual issue, as there was no controversy over whether the Affidavit had been filed or whether Wentzell had done so without instructions. The issue was whether Wentzell’s action was contrary to the Code of Conduct .

Wentzell had argued that the Code of Conduct did not preclude his filing the Affidavit because this information was not subject to solicitor-client privilege, and providing the Affidavit was respectful of his duty to be forthcoming with the Court. [ 22 ] The majority dealt with this complaint in this way (the third member of the Tribunal did not express a separate view on this complaint and presumably ascribed to the majority decision): It is clear that Brian Wentzell has stood fast in his position from the date of settlement that he had instructions to settle this matter.

The position of Brian Wentzell was going to come out at the application to enforce settlement, whether by affidavit or subpoena. There was no direct pecuniary harm caused by the action. By the time that the application had taken place, the primary plaintiffs were no longer being represented by Brian Wentzell and they had retained Padraig Mohan and Mark Griffin. That said, he eased the matter

procedurally for the applicants and turned his back on his clients, and they to him. The question is whether the filing of the affidavit in its own right is actionable. Brian Wentzell knew or ought to have known that this act was an action against his clients’ position, and nominally at least, against their interest. Brian Wentzell’s view is that his duty to the Court is greater than the duty owed to his past clients and it would have been a waste of the Court’s time to insist upon his testimony through a subpoena.

That may all well be true, but Brian Wentzell misses one important step and that is that he failed to communicate all of that to his client; to confer with them, and to cooperate in the advancement of their interests to the limited extent that he could. … We also accept that it did not make any difference to the outcome of the hearing; he could still have been cross-examined on the affidavit just as well as if he gave his testimony through subpoena.

What he ought to have done was to open dialogue with Padraig Mohan, present him with the conundrum of affidavit versus subpoena, and give him his view on settlement and when and how it occurred. … That said, Brian Wentzell’s actions in this case in failing to communicate and to cooperate with his past clients challenge the foundation of the relationship and the fidelity attenuate thereto. Brian Wentzell ran up against his past client in his actions in a fashion that was not necessary, and which aggravated his clients and the situation generally.

This was actionable and a breach of his duty to act with integrity toward his client and in particular

Chapter 1 Integrity of the Code of Professional Conduct. [ 23 ] The Law Society appeals the dismissal of the complaint related to whether Wentzell settled the claim without instructions; Wentzell seeks to cross-appeal from the finding that his filing the Affidavit in support of the application to enforce the settlement was contrary to the Code of Conduct. The right of appeal is set out in the Law Society Act, 1999 , S.N.L. 1999, c.

L-9.1, s. 55.2 : 55.2(1) The society or the respondent may, within 30 days after receiving notice of a decision or order of an adjudication tribunal under this Part, appeal the decision or order or a part of it to the Trial Division by filing a notice of appeal with the court.

THE POSITIONS OF THE PARTIES The Law Society Appeal [ 24 ] The Notice of Appeal filed by the Law Society sets out the following grounds of appeal: That the Adjudication Tribunal erred in fact and law and its decision is unreasonable in failing to conclude that Brian Wentzell entered into a settlement agreement on December 20 and December 21, 2010 on behalf of his clients without specific instructions or authorization of his clients contrary to the Code of Professional Conduct; That the Adjudication Tribunal erred in its application of the rule in Browne and Dunn and further erred in concluding that the evidence of Brian Wentzell was credible in light of his violation of this rule of evidence. [ 25 ] At the time that the Law Society filed its Notice of Appeal, the prevailing case law provided that the standard that this Court should apply in considering the appeal was that of reasonableness: Regular v.

Law Society of Newfoundland and Labrador , 2011 NLCA 54 . Since that time, the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , at paragraphs 36-37 , held that where the legislature provides a right of appeal from an administrative tribunal, then the standard of review (absent express provision to the contrary) that this Court ought to apply in reviewing the administrative decision is the same as appellate standards of review applied by the Courts: pure questions of law are to be reviewed on a standard of correctness, pure questions of fact, and mixed questions of law and fact from which no question of law can be readily extricated, on a standard of palpable and overriding error. [ 26 ] The Law Society argues that the majority decision regarding Wentzell’s credibility was so significantly at odds with the documentary and other evidence that acceptance of his testimony amounts to palpable and overriding error.

This is particularly so, says the Law Society, when the majority expressly rejected Wentzell’s testimony that he had received instructions on December 19. The rule in Browne v. Dunn required that Wentzell should have provided Rossiter and Osborne with opportunity to respond to this new evidence. The Law Society says that his failure to have done so was a factor that the majority should have found completely undermined Wentzell’s credibility. [ 27 ] Wentzell argues that the Law Society failed to identify any palpable and overriding error in the assessment of his credibility.

With particular regard to the application of the rule in Browne v. Dunn , Wentzell says that because the Law Society neither objected to the evidence of the December 19 phone call nor sought to recall Rossiter to address that evidence, the rule ought not to be applied against him. Wentzell’s Cross-Appeal [ 28 ] The Law Society says that I cannot consider the Wentzell cross-appeal because it was filed out of time. The decision of the Tribunal was issued on October 10, 2018.

Wentzell says that he filed the Notice of Cross-Appeal on November 15, 2018, more than 30 days following the Tribunal decision but within 30 days of service of the Law Society appeal. The Law Society says that Wentzell’s appeal was out of time because it was filed within 30 days of the Tribunal decision as required by the Law Society Act, 1999 , s. 55.2 .

Wentzell says that the Rule of Court respecting cross-appeal applies; the Law Society says that it does not. [ 29 ] The Law Society also argues that, in any event, Wentzell’s Notice of Cross-Appeal, although dated November 15, 2018, and according to Wentzell sent to the Registry on that date, was never filed. The Registry has no record of having received it. The Law Society did not receive a copy of the Notice of Cross-Appeal and was unaware that a cross-appeal was asserted until Wentzell filed his Factum.

[30] In respect of the substance of the cross-appeal, Wentzell argues that he filed the Affidavit in support of the Town’s applicationto enforce settlement because the information as to whether he was instructed to settle would have to have been disclosed if he had beenrequired to testify in Court.

He felt that it would have been a waste of the Court’s time if he had insisted on not disclosing thisinformation unless he was required to appear in Court in response to a subpoena, that his duty to the Court was higher than his duty to hisformer clients, and that he was therefore required to provide the Affidavit when asked. His obligation as a solicitor was met by hisweighing the relative priority of duties, and his choice in that regard should be free from sanction.

Wentzell characterizes the decision ofthe Tribunal as resting on an error of law as it incorrectly stated the legal standard applicable to the assessment of his conduct. [31] The Law Society argues that the Tribunal decision on this complaint was a determination as to whether Wentzell’s conduct meta legal standard. Therefore, says the Law Society, this is a mixed question of fact and law and the standard of review is a “palpable andoverriding error.” The Law Society says that the cross-appeal should be dismissed because Wentzell did not identify any palpable andoverriding error.

ISSUES [32] The following issue must be resolved in order to determine the Law Society Appeal: 1. Did the majority decision misapply the rule in Browne v. Dunn? 2. Was the majority decision of the Adjudication Tribunal that Wentzell had instructions to settle the bowling alley owners’ claimbased on palpable and overriding error in the assessment of Wentzell’s credibility? [33] The following issues must be resolved in order to determine Wentzell’s cross-appeal: 1. Do the Rules of Court regarding cross-appeals apply to an appeal under the Law Society Act, 1999? 2.

Was Wentzell’s Notice of Cross-Appeal filed within the prescribed time? 3. Does the Court have discretion to relieve against failure to file the cross-appeal within time? 4. What is the standard of review applicable to the decision of the Tribunal that Wentzell breached the Code of Conduct by filing theAffidavit in support of the Town’s application to enforce settlement? 5. Should the decision of the Tribunal that Wentzell breached the Code of Conduct by filing the Affidavit in support of the Town’sapplication to enforce settlement be overturned?

ANALYSIS Law Society Appeal Did the majority decision misapply the rule in Browne v. Dunn? [34] The rule in Browne v. Dunn requires that a party who intends to contradict the evidence of a witness by later evidence put thatanticipated evidence to the witness and give the witness a chance to respond. The rule is one intended to ensure fairness among theparties, and fairness to the witness, but also to ensure a fair result by providing the trier with opportunity to hear how the witness willrespond to the contradiction. [35] In this case, the Law Society says that the rule was breached by Wentzell.

During the course of the application to enforce thesettlement between the bowling alley and the Town, and in the action for damages by the bowling alley against Wentzell, Wentzell hadalways maintained that Rossiter instructed him to settle during a telephone conversation on December 20, 2010. However, when hetestified before the Tribunal, Wentzell said that the instructions to settle were communicated by Rossiter and Osborne during a telephonecall on December 19, and then confirmed by Rossiter on December 20.

Wentzell never confronted Rossiter or Osborne with the versionof events that included the telephone call of December 19. They were not given an opportunity to respond to this version. [36] On the complaints related to Wentzell allegedly acting without instructions, the majority held that their decision came down toresolution of the relative credibility of Rossiter and Wentzell. In such a case, the imperative to provide each witness with opportunity todeal with contradiction is especially acute.

In fairness, Rossiter ought to have been given the opportunity to respond to Wentzell’s newrecollection regarding the communication of instructions. She was never asked whether she recalled a December 19 telephoneconversation with Wentzell, let alone whether she communicated instructions to settle during such a call. This was the type of situationwhich the rule in Browne v. Dunn was designed to avoid. [37] However, the rule in Browne v. Dunn is about fairness, and fairness dictates that the remedy for contravention of the rule is notabsolute but flexible and pragmatic (Palmer v. R., (SCC), [1980] 1 S.C.R. 759).

The first choice of remedy is, ifpractical, that the witness who is contradicted by later surprise testimony be recalled and provided an opportunity to respond (R. v.McNeill (2000), (ON CA), 48 O.R. (3d) 212, 33 C.R. (5th) 390 (C.A.)). In this case, the record demonstrates that Ms.Rossiter was available to be recalled, but the Law Society never asked that it be allowed to do so. [38] Another factor that impacts on the remedy for contravention of the rule is whether a timely objection is made to the surprisecontradictory evidence: R. v. Dexter, 2013 ONCA 744. The rule is one designed to promote fairness.

It is no more fair for a party toallow surprise contradiction without objection or recalling the contradicted witness, and then later ask the trier to draw an inference thatthe witness would have satisfactorily addressed the contradiction. [39] In this case another consideration is that the “epiphany” experienced by Wentzell during his preparation for his testimony was

prompted by the discovery of a copy of an email “buried” in his file which ought also to have been disclosed by Rossiter through LawSociety counsel. That email from Rossiter to Wentzell asked him to call the bowling alley on December 19. Rossiter did not mentionthat communication during her testimony. Wentzell testified that when he saw this email, he determined that instructions to settle musthave been conveyed to him by phone on December 19. [40] The ultimate remedy for contravention of the rule in Browne v. Dunn is the rejection of the contradictory evidence. In thiscase, this is exactly what the majority did.

They rejected Wentzell’s evidence and found that Rossiter and Osborne did not instructWentzell to settle during a December 19 call. [41] The Law Society takes the position that application of the rule in Browne v. Dunn required that the Tribunal apply an evenmore severe remedy. According to this argument, the introduction of a new version of events by Wentzell during his direct testimony,when the other witnesses had already testified and not been given an opportunity to respond to this version, should have materiallyimpacted the entire credibility analysis.

In other words, says the Law Society, any self-represented lawyer who would attempt to presenta false, inculpatory narrative that was inconsistent with the position he had previously articulated, is obviously a person whose credibilitywas so suspect that his testimony ought to have been rejected in its entirety. [42] The rule in Browne v. Dunn does not require such a result. The majority rejected Wentzell’s story that he spoke with Rossiterand Osborne by phone on December 19 and that during this phone call they instructed him to settle.

However, the majority were notrequired then to reject everything that Wentzell had said about other aspects of the case, including especially the December 20 phonecall, and to accept everything that Rossiter and Osborne said.

The majority did direct themselves to consider that Wentzell’s failure tocomply with the rule as a factor that would “diminish parts of the testimony and its weight, by varying extent.” This was the practicaland flexible approach required by application of the rule. [43] The majority was alive to the problem presented by Wentzell introducing a new version of events in his direct testimony,without giving Rossiter and Osborne an opportunity to respond. They considered the significance of this both in respect of determiningwhether the particular new version had occurred, and in respect of credibility generally.

Their findings in that regard are entitled todeference on appeal. As the Ontario Court of Appeal put it in R. v. Quanshah, 2015 ONCA 237, leave to appeal denied, 2016CarswellOnt 14796: 80 As a rule of fairness, the rule in Browne v. Dunn is not a fixed rule. The extent of its application lies within the sound discretion ofthe trial judge and depends on the circumstances of each case: R. v. Paris (2000), (ON CA), 150 C.C.C. (3d) 162(Ont. C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 124 (S.C.C.), at paras. 21-22; R. v. Giroux (2006), (ON CA), 207 C.C.C. (3d) 512 (Ont.

C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 211 (S.C.C.), at para. 42. [44] Therefore, the majority did not err in application of the rule in Browne v. Dunn. Was the majority decision of the Adjudication Tribunal that Wentzell had instructions to settle the bowling alley owners’ claim based onpalpable and overriding error in the assessment of Wentzell’s credibility? [45] The Law Society also takes issue generally with the decision of the majority regarding Wentzell’s credibility, reflected in itsfinding that his testimony was largely consistent with the documentary record.

In particular, the Law Society points out that Wentzell’stestimony included the assertion that he had a conversation with Rossiter and Osborne on December 19 which was clearly inconsistentwith much of the record, and which the majority determined did not occur. Further, the Law Society argues that Wentzell’s testimonythat he had received instructions to settle was inconsistent with his conduct in January 2011, when he did not disabuse his clients of thepossibility of further negotiations with the Town.

Finally, the Law Society says that Wentzell’s testimony that he was instructed to settlewas inconsistent with his having admitted liability in the action against him for damages. [46] The majority considered the first two issues now raised by the Law Society. In respect of Wentzell’s conduct in January 2011,the majority found: We struggled [with] Brian Wentzell’s seeming failure to be more direct with Petria Rossiter when she asked him by email to request ofDeborah Hutchings whether she was counter-offering. We asked ourselves how he could have allowed this to carry on when the matterwas settled.

We asked ourselves if it was evidence that he had settled without instructions. On a complete analysis of all of the evidence,we conclude that he likely did this because Petria Rossiter was accusing him of failing to properly advise on the settlement and accusinghim of failing to tell her to think about settling more before taking her instructions. He hoped that Deborah Hutchings would take the$40,000 offered to her, and knowing that Petria Rossiter could not go it alone, that the matter would go away.

He fell into a mode wherehe did as he was told while telling her that Denis Fleming would not take a counter-offer, but did not take her by the shoulders, so tospeak, and tell her that the matter was over and done.

This may have been poor judgement on the part of Brian Wentzell, but it was notthe complaint that we are seized with addressing, and we therefor [sic] make no ruling on it. [47] Regarding the seeming inconsistency in Wentzell admitting liability in the civil action and yet maintaining that he hadinstructions in defense of the Law Society complaint, the majority found: There is an admission on the trial record stating that Brian Wentzell undertook settlement without having received proper instructions,and that he negligently and in breach of his fiduciary duty to his clients, settle[d] the claim without their proper instructions for $40,000.There is no detail before us as to why this admission was made or to any material facts surrounding the admission.

There is any numberof reasons why a party may admit liability in a civil trial. We believe that we are under no compulsion to make a finding or ruling in thishearing against Brian Wentzell on the strength of the bald admission. There is no evidence as to the facts grounding the admission.

Parts of the evidence suggest that it was because he did not have authority from Robert Osborne, which was not in issue or argued here,and parts suggest that he did not have “proper instructions” which is a catch-all concept which could address matter such as a failure toensure independent legal advice, failure to ensure that a client understands the consequences of instructions or failure to properly advisea client etc. In this case, we do not know what if any of these or others grounded the admission, or whether it was simply a matter ofpractical expediency in settling the matter by his insurer.

[ 48 ] The majority decision to rely on Wentzell’s evidence that he was instructed to settle on December 20 might seem problematic in light of the determination not to credit his evidence that he had first received the instructions in a December 19 phone call with both Rossiter and Osborne. The Law Society argues that it was unreasonable for the majority to conclude that Wentzell lied about the December 19 conversation but told the truth about the December 20 call. However, on closer reading, this was not an unreasonable conclusion by the majority.

Wentzell testified that he did not have a recollection of the call on December 19. His testimony that he received instructions on December 19 was based on reconstructed and not refreshed memory. It was based on two things: first, the December 19 email from Rossiter asking that Wentzell “give us a call,” and second, Fleming’s note to his file that Wentzell told him on Monday, December 20 that he had received instructions over the weekend. Therefore, Wentzell concluded that he must have received instructions during a phone call with Rossiter and Osborne on Sunday, December 19.

The majority did not reject the truthfulness of an assertion that a phone call occurred on December 19, but rather rejected Wentzell’s reconstruction of events based on the documents. [ 49 ] The majority therefore considered the alleged inconsistencies relied upon by the Law Society to ground its appeal and resolved those with the remaining evidence. There was no error in their approach. [ 50 ] Moreover, the position of the Law Society is fundamentally unsound for an even broader reason.

Although the majority did state that resolution of the complaints depended on determination of the relative credibility of Wentzell and Rossiter, their decision clearly showed that they did not find either entirely credible. The decision of the majority instead depended on comparison of the versions offered by each of Rossiter and Wentzell with the documentary evidence in a search for the truth as to whether Rossiter had instructed Wentzell to settle.

Over the course of 25 pages of their decision, the majority painstakingly reviewed the documentary evidence and extracted from each document the evidence related to the essential question as to whether Wentzell was instructed to settle. It may be that different inferences or conclusions could have been drawn from certain parts of the testimony or from any of the documents. However, it was the task of the Tribunal to weigh and consider all of the evidence and make factual findings. In the absence of palpable and overriding error, this Court must defer to their findings.

The Cross-Appeal [ 51 ] The Tribunal issued its decision on October 10, 2018. The appeal period set out in the Law Society Act, 1999 , s. 55.2(1) expires 30 days from the date of the decision. Wentzell says that he filed his cross-appeal with the Registry on November 15, 2018. That would have been too late unless the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D , providing for cross-appeals applies to this appeal. Further, the Registry has no record of having received the Notice of Cross-Appeal for filing. The Law Society says that the Court should not consider the cross-appeal.

Do the Rules of Court regarding cross-appeals apply to an appeal under the Law Society Act, 1999 ? [ 52 ] Rule 58 of the Rules of the Supreme Court, 1986 governs appeals to this Court. 58.01

Definitions The following

definitions apply to this rule (a) " appeal " means an appeal to the General Division and, where the context requires, includes a cross-appeal, a stated case, or a reference made to the Court under a statute; (b) " appellant " means a person who starts an appeal or a cross-appeal and includes a tribunal that states a case or brings a reference; (c) "Chief Justice" means the Chief Justice of the Supreme Court; (d) " decision " means (

i) a formal order of a decision-making authority, (ii) an order or decision made in an uncompleted matter, and (iii) anything accepted by a decision-making authority as having the same effect as a formal order; (e) " decision-making authority " means any person or body, from whom an appeal lies to the Court, including any court, tribunal, board, commission, committee, minister, public official, or other public or governmental agency or authority, including the Lieutenant-Governor in Council;

… [53] The Adjudication Tribunal is a decision-making authority within that definition. [54] Rule 58 provides for cross-appeals: 58.07 How to raise additional issues (cross-appeals) 58.07(1) If a respondent seeks to argue on the appeal that (

a) the decision appealed from should be varied; (

b) the decision appealed from should be affirmed on grounds other than those given by the decision-making authority appealed from; or (

c) the respondent is entitled to a different disposition or different relief than that given in the decision appealed from, the respondent must, within 30 days of being served with the Notice of Appeal, (

d) file a Notice of Cross-Appeal; and (

e) serve a copy of the Notice of Cross-Appeal on each party in accordance with rule 6.11. [55] The relief and remedies sought in the Notice of Cross-Appeal bring it within the definition of a cross-appeal in Rule 58.07. Was Wentzell’s Notice of Cross-Appeal filed within the prescribed time? [56] The answer is no. Wentzell’s cross-appeal was required to have been filed and served within 30 days of the date he was servedwith the Law Society’s Notice of Appeal. Wentzell says that his office sent it to the Registry within the prescribed time. I accept that itwas sent.

However, it was not filed and it was not served on the Law Society. [57] The cross-appeal was therefore not filed within the time prescribed by the Rules. Does the Court have discretion to relieve against failure to file the cross-appeal within time? [58] The answer to this question is yes. [59] This Court does not have jurisdiction to extend the time for filing a statutory appeal when that time is set out expressly in thestatute: Conception Bay South (Town) v. Newfoundland (Public Utilities Board) (1991), (NL CA), 287 A.P.R. 167,92 Nfld. & P.E.I.R. 167 (Nfld.

C.A.). [60] As stated by Goodridge, C.J.N., in Conception Bay South: 10 A right of appeal is created or brought into existence pursuant to a statute and does not otherwise exist. It must be brought strictlyin accordance with or pursuant to the terms of the enabling statute. Where there is a conflict between the rules of court and a statute, thestatute prevails. 11 In this case, an appeal from a decision of the Board may only be brought with leave of a judge of the Court. The application forleave must be brought within 15 days of the filing of the order.

There is no statutory power in the court to extend the time limited forbringing an application for leave to appeal. 12 Any provision in the Rules providing for the extension of time has no application to a time period limited by statute unless there isstatutory authority to extend the time. There is none in this case. 13 Apart from that, Rule 57.03(1) expressly preserves the prescriptions of the statute. [61] The former Rule 57.03(1) provided:

57.03(1) If a statute authorizing a tribunal appeal prescribes how the appeal shall be brought or when, how and to whom any notice ofappeal may be delivered, the prescriptions shall be observed. [62] There is no equivalent to Rule 57.03(1) in the current Rule 58. Nevertheless, the primary rationale for the holding inConception Bay South is not affected. That reasoning has been applied by this Court since the Rules were changed to deny applicationsto extend the time for filing statutory appeals (Eastern Regional Integrated Health Authority v.

Assn. of Registered Nurses ofNewfoundland and Labrador, 2016 NLTD(G) 182; Institute of Chartered Accountants of Newfoundland and Labrador v. Cole, 2017NLTD(G) 73). [63] However, Mr. Wentzell seeks to extend the time for filing a cross-appeal. Unlike the time for filing an appeal, the time forfiling a cross-appeal is not prescribed by statute, but by the Rules of Court.

Therefore, the Court has the jurisdiction to extend the timefor filing under Rule 58.02(3) and Rule 3.03: 58.02(3) Where an issue respecting practice or procedure arises which is not covered by this rule or by an applicable statute, any of rules1 to 4 or the rules in

Part I may be applied as required, with any necessary modifications. 3.03 Extension, etc., of time 3.03(1) The Court may, on such terms as it thinks just, extend or abridge the period within which a person is required or authorized bythese rules, or by any order, to do or abstain from doing any act in a proceeding. 3.03(2) The Court may extend any period referred to in rule 3.03(

l) although the application for extension is not made until after theexpiration of the period. [64] This makes sense given that the filing of the Notice of Appeal engages the machinery of the Court, including the jurisdiction toconsider all matters raised by the appeal.

This is made clear by the following provision in Rule 58: 58.07(3) Failure of a respondent to file and serve a Notice of Cross-Appeal does not diminish the power of a judge to deal with anymatter that arises, but it may be grounds for an adjournment of the appeal or an order as to costs. [65] I recognize that in Institute of Chartered Accountants v.

Cole, Stack, J. appeared to apply the principle in Conception Bay Southto the question whether this Court had the jurisdiction to extend the time for filing a cross-appeal, when he concluded at paragraph 40: “Applying that reasoning [from Conception Bay South], I do not have authority to extend the time for Cole to file a cross-appeal.” [66] However, underpinning that finding was his earlier conclusion, at paragraphs 37-38, that Cole’s cross-appeal was not a cross-appeal at all, but an attempt to appeal an earlier decision of another tribunal that was not the subject of the appeal then before him. [67] Therefore, I conclude that the Court does have jurisdiction to extend the time for filing a cross-appeal to a statutory appeal.

The next question that must be addressed is the basis on which that discretionary jurisdiction should be exercised. [68] The discretion to extend time can be considered without an express application (Lundrigan Group Ltd. v. Pilgrim (1989), (NL CA), 234 A.P.R. 217, 75 Nfld. & P.E.I.R. 217 (Nfld. C.A.)).

The Court of Appeal at paragraph 38 in that case made itclear that the decision whether to exercise discretion to extend time is not governed by strict rules: “The overriding general principlemust be that in exercising its discretionary power the Court must balance the equities and justice of the situation with which it is seized.” [69] Although there are no strict rules governing the exercise of discretion, there is guidance as to the factors to be considered. InL.S. v. M.M., 2018 NLSC 69, Chaytor, J. decided an application to extend the time for filing a statutory appeal.

The Court of Appealdecision in Conception Bay South, and the cases in this Court decided in accordance with that decision do not appear to have been citedto Chaytor, J., and she proceeded on the assumption that she had jurisdiction to extend the time for filing the appeal. Chaytor, J. foundthat the factors utilized by the Court of Appeal in determining whether to extend the time for filing Notice of Appeal under the formerRule 57 were useful in determining whether to extend the time for filing a statutory appeal. This non-exhaustive list factors was set outin Law Society (Newfoundland) v.

Fahey, 2000 NFCA 19, at para. 3: 1. whether the appellant had a bona fide intention to appeal within the appeal period; 2. whether there is a reasonable excuse for the failure to comply with the rule; 3. the potential merits of the appeal; and 4. the presence of any exceptional or special circumstances justifying or working against the fairness of an extension.

[70] I find that those factors are applicable to the decision that I have to make as to whether to extend the time for filing a cross-appeal. I have considered those factors and determined that they ought to be resolved in favour of Wentzell. Wentzell sent his Notice ofCross-Appeal to the Registry within the time limited of rifling a cross-appeal. He ought to have taken greater care to ensure that it wasfiled, but I accept that he had a bona fide intention to appeal, and a reasonable excuse for failing to comply with the rules.

His cross-appeal raises a question as to whether the Law Society applied the correct standard in finding that he contravened the Code of Conduct,and it cannot be said that his appeal lacks merit. Wentzell included arguments in support of his cross-appeal in the Factum that he filedin this matter. The Law Society responded to Wentzell’s arguments on cross-appeal in a Reply Factum filed before the hearing, and werenot at any significant disadvantage resulting from the failure to file in time. [71] I therefore will allow Wentzell an extension of time to file his Notice of Cross-Appeal.

What is the standard of review applicable to the decision of the Tribunal that Wentzell breached the Law Society Code of ProfessionalConduct by filing the Affidavit in support of the Town’s application to enforce settlement? [72] The parties disagree regarding the standard of review that I ought to apply in resolving the cross-appeal.

Wentzell says that thecross-appeal raises a question of law that I should review on a standard of correctness; the Law Society says that the issues raised involvemixed questions of fact and law that must be considered on the standard of palpable and overriding error. [73] The Supreme Court in Vavilov affirmed that a Court exercising a statutory appellate function is to apply an appellate standardof review. The leading authority defining the appellate standard of review remains Housen v.

Nikolaisen, 2002 SCC 33 , [2002]2 S.C.R. 235, in which the majority of the Supreme Court concluded that the appellate standard of review for a pure question of law iscorrectness; for findings of fact, including drawing inferences of fact, palpable and overriding error. The Court pointed out that there arealso questions of mixed fact and law, and that the appellate standard of review depends on an analysis along a spectrum of particularity.

If a general question of law is readily extricable from the mix, then appellate review is on a standard of correctness; if the question is theapplication of law to a particular set of circumstances, then the standard is closer to a search for palpable and overriding error. Themajority in Housen pointed out as well that the application of a legal standard to factual findings is a mixed question of law and fact, withappellate review determined along the spectrum. [74] In this case, there are no questions of fact in issue on the cross-appeal.

There was no dispute that Wentzell filed an affidavit insupport of the Town’s application to enforce the settlement agreement with the bowling alley owners, and no question that he had noinstructions or consent from the bowling alley owners to file the Affidavit. The sole question was whether filing the Affidavit in thosecircumstances was contrary to the Code of Conduct. [75] The Tribunal decided that a lawyer filing an affidavit in support of an application to enforce settlement against his formerclients is conduct that demonstrates a lack of integrity.

The main concerns of the Tribunal were that the Affidavit was filed without theconsent or even prior knowledge of his clients, and that doing so constituted acting adversely to his former clients. [76] At the hearing before the Tribunal, the Law Society expressly conceded that its complaint did not depend upon a finding thatWentzell had violated solicitor-client privilege by disclosing his instructions without the consent of his clients. The Law Society did notexplain the rationale for this concession.

The concession meant that the Tribunal did not deal with this question, and, although I haveconsiderable doubt as to the validity of this position, it is not open to this Court to consider it on this appeal. The Law Society complaintdid not include an allegation that Wentzell had violated solicitor-client privilege. [77] The Tribunal found that Wentzell could have been compelled by subpoena to attend the hearing to enforce the settlement andtestify about his instructions.

While he could certainly have been compelled to attend the hearing, I again have considerable doubtwhether he could have been compelled to testify regarding his instructions without the consent of his clients. The issue as to whetherthere was an enforceable settlement would have turned on the content of the communications between Wentzell and Fleming, and not onWentzell’s instruction. Any questions about his instructions could have resulted in objections raised as to relevance as well as privilege. [78] The Tribunal characterized Wentzell’s filing the Affidavit as acting adversely to his clients’ interests.

I do not agree with thischaracterization. If a solicitor is compellable as a witness in a proceeding, then testifying does not constitute acting adversely to theclients even if the testimony is unfavourable to the clients’ position. A solicitor who testifies becomes a witness, and not counsel, andtestifying is not

an act of legal representation. The solicitor has a continuing obligation to respect the clients’ privilege, but otherwise hasan obligation as a witness to testify honestly and fulsomely about relevant matters. [79] But, these issues were not before the Tribunal due to the concession by the Law Society. Therefore, the sole question that theTribunal had to answer was whether Wentzell’s cooperation with opposing counsel in filing an affidavit without the consent or priorknowledge of his clients was a violation of the Code of Conduct.

This question falls much closer along the spectrum of particularity to apure question of law. As the Law Society Act, 1999 creates a right of appeal to this Court, the Tribunal’s decision on that question isreviewable on a standard of correctness even though it does raise a question of professional standards and ethics on which the LawSociety and the Tribunal would have considerable expertise. [80] Neither Wentzell nor the Law Society presented any case law or any other authority dealing with this question aside from theCode of Conduct and the accompanying commentary.

The requirement to act with integrity is a fairly general description of thesolicitor’s obligations to a clients. However, I do find that Wentzell’s conduct in this case breached that general requirement. It appearsclear from the circumstances that after his relationship with the bowling alley owners broke down, he had communications with thesolicitor for the Town’s insurers that he did not disclose to his clients. He agreed to cooperate with the Town’s insurers in theirapplication to enforce settlement. He did not seek permission from the bowling alley owners to communicate with the adverse party.

Hewas aware that the bowling alley owners were disputing the enforceability of the settlement. He owed an obligation to his clients todisclose this communication, and to take instructions from them as to what he should do in response to the request that he provide anaffidavit. [81] Wentzell says that he could have been required to testify about the subject matter of his Affidavit if he had been served with asubpoena. He further says that to have required the Town’s insurer to serve him with a subpoena would have resulted in a waste of the

time of the Court because he would have attended in Court and disclosed what his Affidavit stated. He felt that he owed a duty to the Court not to waste its time and that this duty to the Court was higher than any obligations owed to his clients. [ 82 ] I do not accept this position. A solicitor has an obligation to hold in confidence all communications with his clients or former clients. If the solicitor is asked to disclose such communications, he or she has an obligation to determine whether the information requested is privileged. In many cases, the solicitor may have to seek legal advice on this question.

The solicitor also has an obligation to advise the clients or former clients that the information has been requested. The clients can then take a position on whether the solicitor can disclose the communication, and even argue before the Court on the question whether the solicitor has to disclose. It is not for the solicitor to make this determination without consultation with the clients. [ 83 ] Therefore, I see no error in the finding of the Tribunal that Wentzell’s conduct violated his duty of integrity. The cross-appeal is dismissed. DISPOSITION [ 84 ] In the result: 1.

The appeal by the Law Society is dismissed; 2. The time for filing the cross-appeal is extended; 3. The cross-appeal is dismissed. 4. As each party was unsuccessful in their appeal, each party shall bear their own costs. _____________________________ Daniel M. Boone Justice